Montana’s Medical Marijuana Law – Frequently Asked Questions
Montana witnessed a seismic shift in its medical marijuana law in 2011. Where before the law was vague and provided broad protections for patients and providers, the new law is slightly less vague, but is designed to make it as difficult and unappealing as possible for individuals to participate in the program. Neither approach actually does much regulation, as production, distribution and financial concerns are largely ignored.
The new law displaced the previous law beginning in April of 2011, with various provisions going into effect as late as October. Most of the substantive changes took place on July 1. Our current law was presented at the 62nd legislative session as Senate Bill 423, and it is still referred to as SB423, although it has now been codified in the Montana Code Annotated.
It is important that keep in mind that the cultivation, possession, and distribution of any amount of cannabis is illegal according to the federal government. The rules discussed here are based on current state laws in Montana only. The fed has made clear through at least one letter and a judicial decision that it can disregard state law, so none of these rules can protect you if you get in trouble with the federal government.
This FAQ is not legal advice. If you have a specific question about your circumstances, consult with an attorney. This is general information about our Montana Marijuana Act and not to be relied upon without the assistance of a lawyer.
How did the law change?
The 62nd legislative session created a seismic shift in the way Montana manages its medical marijuana program. The legislature repealed the existing law, known as the Montana Medical Marijuana Act (which was created through a voter initiative in 2004) with the new law, known simply as the Montana Marijuana Act, through legislative action. The new law was put together at the very end of the legislative session and saw approximately 150 proposed amendments in a short period of time. As mentioned above, the bill was known as SB423. It has since been codified at 50-46-301, et seq.
When did the law go into effect?
The former law was repealed upon the adoption of the new law, but the law which passed, SB423, allowed for a somewhat gradual conversion from the old system to the new one. By in large, most of the provisions of the new law went into effect as on July 1, 2011. The original bill established the following dates for the transition in Section 35. This summary of the timeline does not appear in the law on the books now, but was described in the bill itself:
June 1, 2011 – The Department of Public Health and Human Services (DPHHS) began issuing registry ID cards to persons with debilitating medical conditions on this date. The bill allowed DPHHS to issue provider and marijuana-infused products providers (MIPPs) as of the same date, but did not actually start accepting applications until July 1.
July 1, 2011 – Any provider who had not registered with the state under the new system was prohibited from being in possession of mature marijuana plants, seedlings, cuttings, clones, usable marijuana, or marijuana-related products. Because DPHHS had not established the new system as of July 1, the effect was that NO ONE calling themselves a provider (formerly caregiver) could be in possession. On July 1, DPHHS instituted its new program by publishing provider application forms on its website, and caregivers making the transition to provider began applying on that date, many making the trip to Helena to do so in person. Because the application process takes approximately 30 days, the effect was that there were no providers during the month of July. According to the rules, former caregivers were required to take their plants and marijuana to “the local law enforcement agency having jurisdiction in the provider’s area.” Few law enforcement agencies wanted to receive such items, and few if any did.
October 1, 2011 – Up until this date, DPHHS was allowed to issue registry ID cards to providers without doing background checks (including fingerprints). As of October 1, background checks became mandatory for all providers. Those who had not provided the information already were told to comply, and all new applications required information for background checks.
Cardholder (formerly patient) cards did not expire but were allowed to continue in effect until the cards expired in accordance with the date set when the card was issued.
What happened to the old law?
The old law has been repealed. Anyone accused of violating the state’s medical marijuana laws before July 1, 2011 would be subject to the requirements of the old law. Anyone accused of violating the law on or after July 1 is subject to the new law.
Who wrote the new law?
The new law was at least theoretically written by Senator Jeff Essman. Likely it was written by someone working for him or with him to craft the new requirements.
How did we end up with this law?
Originally, the legislature was intent on repealing the old law and sought to do away with medical marijuana completely . The bill for repeal passed both the House and Senate but the expectation of many at the legislature was that Governor Schweitzer would likely veto the bill. As a result, Senator Essman rushed through a “regulatory” bill to take the place of the old law. When it was clear that a veto would happen, we were left with SB423 as the default alternative. At the time, the perception of many was that the former law was “broken”, and that reverting back to the I-148 would be unacceptable to many legislators.
Were there any changes in the definitions of key terms in the new law?
Several key terms changed. Most notably, “patients” under the old law were renamed simply “cardholders”, and “caregivers” have been redubbed “providers”. The various qualifying conditions were tweaked to include intractable nausea or vomiting, epilepsy or an intractable seizure disorder, and admittance into hospice care. The requirements for people to qualify based on chronic pain were increased to require a specific etiology (proof) or alternatively to get the opinion of a second physician. Also, the new law removes any references to “medical marijuana”.
Why does the new law avoid calling it “medical marijuana”?
It is not clear why the legislature was intent on removing references to “medical” marijuana in the new law. While the legislature changed terminology (from patients to cardholders, from medical marijuana to simply marijuana), they actually increased the standard for physicians making recommendations. Ironically, there is now a higher standard of care for physicians making recommendations for medical marijuana than there is for the same physician to write a prescription for narcotic medication.
Which state agency or agencies administer the program?
The Montana Department of Public Health and Human Services (DPHHS) runs the program for issuing cards, but does not administer any other aspect of the program. There is no agency that oversees the activities of providers or patients as such other than law enforcement. The DPHHS site for their program includes its own FAQ and numerous forms available online.
Do I need to have a card issued by the state to be a cardholder or a provider?
Yes. Under the new law, a person is not acting within the protections of the Marijuana Act unless he or she is a registered cardholder or provider. This appears at several places in the new law. The section on legal protections and allowable amounts, the section on provider types, and the definitions for providers and cardholders all refer to a person “registered with the department”.
In addition, one particular statute within the law specifically addresses cards, and states that a program participant must be in possession of his or her card (at all times!). The requirement also appears in the section authorizing protection from arrest, prosecution or penalty here under subsections 2 and again in subsection 7. Finally, it appears at the end of subsection 1 under the statute on DPHHS responsibilities.
Put all these together and you must be registered and be in possession of a state-issued card to be acting within the scope of the law.
Do we have reciprocity with other medical marijuana states?
No. There is no provision within the law allowing reciprocity. Reciprocity does not happen by default, so without a specific allowance for it, our state would not recognize a card issued by another state.
Is there an affirmative defense in the new law?
No. The former law contained an affirmative defense for people accused of a marijuana-related offense who were acting like patients or caregivers, but who were not registered with the state. The affirmative defense went away when the former law was repealed, and the new law does not contain its own affirmative defense. It is possible that in any criminal proceeding there may be one or more affirmative defenses in the general sense, but there is no such a defense that is specific to medical marijuana under our current law.
What has the MTCIA lawsuit accomplished so far?
The law was designed to make it extremely difficult to be a provider or a physician who is willing to make medical marijuana recommendations. After filing its law suit, the MTCIA and several other plaintiffs prevented some of the worst provisions from being enforceable, even though they still appear in the text of the law. This is a temporary thing. If the case is successful, this temporary fix will become permanent. If not, then the worst of the current law will be in effect.
The sections which were enjoined by court order aim to:
- Eliminate any compensation from the cardholder to his or her provider here in paragraph 4,
- Limit a provider’s patients to a maximum of three in (the same section as above), paragraph 3,
- Require providers to submit to warrantless searches by law enforcement here,
- Prohibit advertising by providers here,
- Require that physicians who make more than 25 recommendations in a calendar year be audited by the Montana Board of Medical Examiners, here in paragraph 10.
How can I find out more on the lawsuit?
We try and keep our blog updated with the latest on the suit, which is available on the main page of the mtcia.org website. To see the legal documents filed in the case, they are available here.
How do I become a cardholder?
- Meet with a physician who will evaluate you to see if your condition qualifies for a recommendation. A pdf of the state form that a doctor needs to fill out for most patient types is here. There is a special form for chronic pain cardholders here. The doctor must fill out the form and provide it to you.
- Decide if you want to grow your own or use a provider to grow cannabis for you.
- Decide where you will be growing, if you are. If you use a rental space, you will need the landlord’s permission. A state created form for the landlord authorization is available online.
- Next, fill out the state application.
- Send the physician’s recommendation, application, a check for $25 for new cardholders or $10 for renewals made payable to DPHHS/MMP, and the landlord authorization form (if needed) to the state. The address is DPHHS at P.O. Box 202935, Helena MT 59620-2935.
- The state has 30 days from the date it receives the mail to register you or reject the application, and an additional 5 days to mail the notice out to you. If a provider was selected by the patient and fills out his or her own paperwork (see below), the provider also receives mail from the state containing a letter and a registry ID card. 50-46-303, MCA, paragraph 4.
Note there are several restrictions on who can be a cardholder. People under supervision by the Department of Corrections cannot be in the registry according to the current law under 50-46-307, MCA, paragraph 4. Minors need a different application, permission from a parent or guardian who can serve as the provider, and a recommendation for a second physician regardless of condition. 50-46-307, MCA, paragraph 3.
If I am a provider, can I consume marijuana?
Only if you are a cardholder as well. The law expressly prohibits a provider from lawfully consuming simply for being a provider under 50-46-320, MCA, however the law does not restrict providers from being separately qualified as cardholders.
Can I grow my own if I designate a provider?
No. The new law requires a cardholder to either grow their own or select a provider, but not both, in 50-46-307, MCA, see paragraph 1(e) and paragraph 5.
If I am a cardholder, can I provide marijuana to another cardholder?
No. Cardholders may not provide marijuana to any person unless the cardholder is also registered as a provider, and the recipient is registered as that cardholder’s patient. 50-46-307, MCA, see paragraph 1(f). See also 50-46-330, MCA, paragraph 1(b)(ii).
Can I be a cardholder if I am on supervision?
No. A person may not be a registered cardholder if the person is in the custody of or under the supervision of the department of corrections or a youth court. See 50-46-307, MCA, paragraph 4. This issue is currently being litigated in the MTCIA challenge to the law.
If I want to grow my own, how do I get plants or seeds?
The law is vague about how patients can lawfully obtain plant stock. On the one hand, if a cardholder has selected a provider, that cardholder is not authorized to be in possession of live plants. Similarly, if the cardholder has elected to grow his or her own, there is no person legally authorized to provide plants to that person. On the other hand, there is an indirect reference to providers selling live plants in 50-46-329, MCA, which requires that “a provider or marijuana-infused products provider shall maintain records showing the names and registry identification numbers of registered cardholders to whom mature plants, seedlings, usable marijuana, or marijuana-infused products were transferred and the quantities transferred to each cardholder.” The provision of live plants to cardholders does not appear any other place under the current law.
What restrictions are there to being cardholder?
There are quite a few. Many of these appear elsewhere in this FAQ:
- Cardholders must be residents of Montana. 50-46-307, MCA, paragraph 1.
- A cardholder must be in possession of the registry ID card at all times. 50-46-317, MCA. The same section also requires the person to display valid photo identification upon demand by a law enforcement officer or judge.
- If a cardholder has “any change in the cardholder’s name, address, physician, provider, or marijuana –infused products provider or change in the status of the cardholder’s debilitating medical condition” the cardholder has 10 DAYS to notify the department or the registry identification card is void. 50-46-303, MCA, see paragraph 7.
- The cardholder, if growing his or her own, must notify DPHHS of the grow location (which happens in the course of applying for a card). 50-46-307, MCA, paragraph 1(h).
- If a cardholder has any law enforcement interaction and an officer runs his or her driver’s license through the law enforcement database (for instance at a traffic stop), the officer will see that the individual is listed as a cardholder in the registry.
- A cardholder who is suspected of DUI must submit to a blood draw to analyze the amount of THC in the system. 50-46-320, MCA, paragraph 7.
- Cardholders may not provide marijuana to any person unless the cardholder is also registered as a provider, and the recipient is registered as that cardholder’s patient. 50-46-307, MCA, see paragraph 1(f). See also 50-46-330, MCA, paragraph 1(b)(ii).
- Cards typically expire in 1 year from the date of issuance, but they can be limited to a shorter period of time by the recommending physician. 50-46-303, MCA, paragraph 6. There is no “grace period” for failing to re-apply far enough in advance to get the new card before the old one expires.
- If a cardholder intends to grow his or her own, there is no clear lawful way to obtain live plants or seeds under state law.
- If a cardholder lives in a rental space, he or she must get written and notarized permission from the landlord before growing.
- If a cardholder lives with another cardholder, that person cannot grow at the residence unless related by blood or marriage. 50-46-307, MCA, paragraph 7.
- The current law expressly prohibits people who are under supervision of the Department of Correction from being registered as cardholders. 50-46-307, MCA, see paragraph 4.
- Minors who want to be patients can only have one provider – a parent or guardian. The parent or guardian MUST grow it for the minor, since there is no legal way for a provider to obtain marijuana from another provider or any other source.
- Plants pay not be visible from the street or other public area. 50-46-320, MCA, paragraph 2.
- Cardholders are not protected from drug use policies at the workplace. 50-46-320, MCA, paragraph 4(b) and (5).
- Use is restricted in several respects. According to 50-46-320, MCA, paragraph 1, cardholders cannot consume in the following locations:
- A healthcare facility,
- A school or postsecondary school,
- Property owned by a school district or postsecondary school,
- Property leased by a school district or postsecondary school when used for school-related purposes
- A school bus or other form of public transportation,
- When ordered by a court to be placed in a correctional facility or program,
- When a court has placed that restriction on a person,
- Any public park, beach, recreation center or youth center,
- A church synagogue or other place of worship,
- In plain view of the public or in a place open to the general public, or
- Where exposure to the marijuana smoke “significantly adversely affects the health, safety or welfare of children”, which could be a residential location.
- Prior to admission to a health care facility, the facility is authorized to remove medical marijuana from a person and have it taken (either by a provider, guardian, or a person with power of attorney) to the person’s residence. If no one is available and authorized, it can be removed and then destroyed by law enforcement. 50-46-318, MCA.
- Cardholders may not exceed 4 mature plants, 12 seedlings, and one ounce of usable marijuana. 50-46-319, MCA.
- Insurers are not required to compensate cardholders for the cost of medical marijuana, and it cannot be subsidized through a government program. 50-46-320, MCA, paragraph 4.
- Cardholders who are convicted of a DUI because of marijuana use will have their cards revoked during the period of suspension of driving privileges that comes with sentences for DUI. 50-46-320, MCA, paragraph 7(b).
- DPHHS must revoke and cannot reissue a card if a person (presumably already in the registry) who does any of the following:
- Is convicted of a drug offense, whether misdemeanor or felony,
- Allows another person to be in possession of his or her registry identification card,
- Allows another person to be in possession of plants, seedlings, usable marijuana, or marijuana-infused products, or
- Fails to cooperate with DPHHS concerning an investigation or inspection of the person is registered and cultivating or manufacturing marijuana.
- Any person who fraudulently represents to law enforcement that the person is a registered cardholder can face a misdemeanor charge which could include up to 1 year in jail and may not be registered as a provider . 50-46-331, MCA.
- If law enforcement believes you are violating the law and seizes plants or seedlings, they are not obligated to care for or maintain the plants, although they are required to give it back if it is later determined that the person is or was in compliance with state law. 50-46-340, MCA.
- DPHHS has a hotline (available as an option at the main telephone number for the registry) for reports of suspected abuse of the states medical marijuana law.
- Penalties for medical marijuana registry members who are found to be in violation of the law are the same penalties as a person who is not in the registry faces under similar circumstances.
How many plants can I have as a cardholder?
A registered cardholder may possess up to 4 mature plants and 12 seedlings. 50-46-319, MCA, paragraph 1. A mature plant is defined as “a harvestable female marijuana plant that is flowering,” and a seedling is “a marijuana plant that has no flowers and is less than 12 includes in height and 12 inches in diameter.” 50-46-302, MCA, paragraphs 8 and 17 respectively. What is left unaddressed is how to count a plant that is not a flowering, harvestable female, but is taller or wider than 12 inches. Perhaps the intention was to force growers to flower plants that are less than 12 inches tall, but that is not clear based on the language. Presumably any plant that is over 12 inches should be considered a flowering, harvestable female, but there are no cases in Montana that have explored this yet.
How do I become a provider or a marijuana-infused products provider (MIPP)?
- Qualify to be one by:
- Being at least 18, 50-46-302, MCA, paragraph 10(a),
- Not having a misdemeanor drug conviction or a felony of any type on your record, 50-46-308, MCA, paragraph 2.
- Not being in custody of the Department of Corrections,
- Being current on any taxes or judgments due to a government agency,
- Not being in default on government-issued student loans,
- Being current on any child support obligations
- Not having designated another individual as your provider.
- Filling out the application provided by the state,
- Making out a check for $50 made payable to DPHHS/MMP,
- Completing two fingerprint cards for a background check. The cards along with instructions can be obtained by calling DPHHS at 406-444-0596,
- Filling out a Change Request Form if the cardholder is switching to you from another provider or adding a caregiver where he or she previously grew their own. If your patient is not yet registered with the state, it is best to combine your forms packet with theirs so that DPHHS sees it all and can set you both up at the same time.
- Obtaining written, notarized permission from a landlord if you will be using rented space for the grow. The landlord authorization form is here.
- Send the application, check, fingerprint cards, change request form or cardholder application packet and landlord authorization form (if needed) to DPHHS at P.O. Box 202935, Helena MT 59620-2935.
What restrictions are there to being or becoming a provider?
As with cardholders, there are numerous restrictions, and several of these restrictions are described elsewhere in this FAQ. Since most providers are also cardholders, all the restrictions on patients also apply here.
- As mentioned above, to qualify to be a provider a person must be 18 years old or older 50-46-302, MCA, paragraph 10(a), have a record clean of any misdemeanor drug convictions or felony convictions of any type, not be in custody or under supervision of the Department of Corrections, be current on all taxes and court judgments, not be in default on any government-issued student loans, not owe any outstanding child support, and not list anyone else as your provider, 50-46-308, MCA, paragraph 2.
- Authorization to serve as a provider expires at the time indicated on the state-issued provider card or as soon as DPHHS issues a card to a new provider. 50-46-303, MCA, paragraph 6.
- The grow location will be provided to state law enforcement. 50-46-303, MCA, paragraph 9.
- A provider must be named as a provider by a cardholder. 50-46-308, MCA, paragraph 1.
- A provider must be a Montana resident. 50-46-308, MCA, paragraph 1.
- A provider cannot provide to anyone who has not registered that person as their provider with the state. 50-46-308, MCA, paragraph 1.
- Plants grown for a particular patient must only be grown at one location. 50-46-308, MCA, paragraph 1.
- A provider or marijuana-infused products provider (MIPP) can have a maximum of three registered cardholders. 50-46-308, MCA, paragraph 3. If the provider is also a patient, he or she is limited to two additional cardholders. [THIS REQUIREMENT WAS ENJOINED IN THE MTCIA LAWSUIT.]
- A provider or MIPP cannot receive “anything of value” including money from a cardholder for anything other than the provider’s application or renewal fee. [SAME SECTION AS ABOVE, ALSO ENJOINED].
- A provider may not consume marijuana unless that person is also registered as a cardholder. 50-46-320, MCA, paragraph 6.
- A provider must either grow at property he or she owns or, if a rental, must be done with permission from a landlord. 50-46-308, MCA, paragraph 7.
- Providers may not share locations. Same as above, paragraph 7.
- MIPPs have their own specific requirements, below.
- Physicians may not accept or solicit anything of value from a provider or MIPP. 50-46-327, MCA.
- Providers, along with cardholders, must keep their registry identification cards in their immediate possession at all times. They are also required to provide valid photo ID any time a law enforcement officer or judge demands it. 50-46-317, MCA.
- A provider may be contacted by a health care facility to pick up marijuana that was in a patient’s possession prior to admission into the facility and deliver it to the patient’s residence. The health care facility is not liable to the provider for costs to remove the marijuana from the premises. 50-46-318, MCA.
- Providers cannot be in possession of more than 1 ounce of usable marijuana per patient at any time, and cannot possess more than 4 mature plants and 12 seedlings. 50-46-319, MCA, paragraph 1.
- Providers do not appear to be authorized to be in possession of trim, root systems, or otherwise unusable parts of the cannabis plant. (Why is this? Because being in possession of marijuana is by default illegal under the state’s criminal code. The criminal code defines “marijuana” as “all plant material from the genus Cannabis containing tetrahydrocannabinol (THC) or seeds of the genus capable of germination.” 50-32-101, MCA. The Montana Marijuana Act provides exceptions to the prohibition, however the section that deals with what a provider or cardholder can possess, 50-46-319, MCA, says it is up to 4 mature female plants, 12 seedlings, and 1 ounce of usable marijuana. There is no reference to seeds or unusable plant material.)
- Providers cannot cultivate marijuana in a location that is visible from the street or other public area. 50-46-320, MCA, paragraph 2.
- Being a provider alone does not authorize a person to consume marijuana or marijuana-infused products. 50-46-320, MCA, paragraph 6.
- Local governments (cities and counties) can create ordinances or resolutions to regulate providers or MIPPs operating within their jurisdiction. This can include inspections related to public health, safety, and welfare established by the local government. Local governments can also ban storefront businesses. The term “storefront” is not defined under the law. 50-46-328, MCA.
- Law enforcement can conduct unannounced, warrantless searches of a provider’s registered location from under 50-46-329, MCA. This statute also requires that providers must keep a complete set of records of all sales with registered cardholders and make them available to law enforcement during normal business hours. The provider must provide information that DPHHS considers necessary for administration of this requirement. The location, storage locations, or the grow or processing location is subject to search by DPHHS or law enforcement during “normal business hours”. All locked areas must be opened and made available for inspection without delay or otherwise upon request by DPHHS or law enforcement. [THIS SECTION WAS ENJOINED.]
- Providers and MIPPs must maintain records showing the names and registry identification numbers of cardholders to whom mature plants, seedlings, usable marijuana, or marijuana-infused products were transferred and the quantities transferred to each cardholder. 50-46-329, MCA. Not this section was NOT enjoined in the lawsuit and is currently a requirement under the law.
- Provider card status will be revoked upon conviction of a criminal drug offense, or if the person allows another to be in possession of the person’s registry ID card, or any mature marijuana plants, seedlings, usable marijuana, or marijuana-infused products, or fails to cooperate with DPHHS concerning an investigation. 50-46-330, MCA.
- Any person who fraudulently represents to a law enforcement official that the person is a registered provider faces a misdemeanor criminal charge which could carry a 1 year jail sentence IN ADDITION to any other penalties allowed under the criminal provisions of Montana law. That person further is prohibited from ever becoming a registered provider. 50-46-331, MCA.
- A provider commits the offense of disclosure of confidential information related to registry information if the person knowingly or purposely discloses confidential information in violation of the Montana Marijuana Act. 50-46-332, MCA.
- Despite apparent protections within the Act for providers, 50-46-339, MCA, states that “nothing in this chapter may be construed to limit a law enforcement agency’s ability to investigate unlawful activity in relation to a person with a registry identification card.” So yes there are protections, unless law enforcement thinks there may be unlawful activity going on.
- Any plants or seedlings seized in the course of an investigation must be returned to the provider if it is determined the person is acting in accordance with the law, however law enforcement is not required to care for or maintain the plants. 50-46-340, MCA.
- Providers may not advertise marijuana or marijuana-related products in any medium, including electronic media. 50-46-341, MCA. [THIS STATUTE WAS TEMPORARILY ENJOINED IN THE MTCIA LAWSUIT.]
Are there specific requirements for marijuana-infused products providers?
In addition to all the restrictions above, MIPPs are further restricted in the following ways, all of which appear in 50-46-309, MCA.
- Prepare products at a premises registered with the department, in addition to a grow location also registered with the department.
- Use equipment that is dedicated for that purpose alone.
- A MIPP is limited to growing strictly for the purposes of manufacturing marijuana-infused products, unless separately registered as a provider (who can cultivate marijuana for the purposes of smoking it).
- The premises used must meet all applicable standards set by a local board of health for a food service establishment, even though the marijuana-infused product is exempted from regulation as a food in any other part of the law.
What am I supposed to do at harvest with respect to the weight limits and other restrictions on what I can possess?
Great question! You might try Senator Jeff Essman at firstname.lastname@example.org.
What does DPHHS do with my fingerprints?
Providers must provide fingerprints to DPHHS with their applications for a background check. The fingerprints are forwarded to the US Department of Justice for a criminal background check. The DOJ returns the results back to DPHHS along with the fingerprint cards, and the cards are destroyed by DPHHS.
How many plants can I have as a provider?
These restrictions are the same as those for cardholders who grow for themselves, described above. A registered provider may possess up to 4 mature plants and 12 seedlings per registered cardholder. 50-46-319, MCA, paragraph 1. A mature plant is defined as “a harvestable female marijuana plant that is flowering,” and a seedling is “a marijuana plant that has no flowers and is less than 12 includes in height and 12 inches in diameter.” 50-46-302, MCA, paragraphs 8 and 17 respectively. What is left unaddressed is how to count a plant that is not a flowering, harvestable female, but is still taller or wider than 12 inches. Perhaps the intention was to force growers to flower plants that are less than 12 inches tall, but that is not clear based on the language. Presumably any plant that is over 12 inches should be considered a flowering, harvestable female, but there are no cases in Montana that have explored this yet.
What is wrong with the new law?
- The new law establishes many restrictions, but does virtually nothing to regulate production and distribution except through plant count, size restrictions, possession amounts, and by allowing local governments to set up rules for doing so. There is no state agency that oversees these activities, except law enforcement is responsible for enforcing these limitations.
- The law goes out of its way to eliminate references to the medical application of marijuana, yet still requires a physician’s medical examination and a certification that it is for that purpose.
- The law states that marijuana-infused products are not considered food, but requires the production facilities to meet health code standards established for food preparation facilities.
- There is no clear, legal way for providers or patients to obtain live plants or seeds.
- While the federal government considers all provider activities illegal, the state requires applicants for provider to give their fingerprints to the US Department of Justice for a background check.
- A person who grows for themselves cannot live with another patient at all unless they are married or blood relatives.
- Any plant over 12 inches apparently is either illegal or must be considered a blooming female plant capable of being harvested.
- It is illegal to have cannabis tested for mold, insecticides or medicinal value.
- Nobody on probation can be a member of the registry, regardless of medical need, the opinion of a judge or a probation officer.
- If a parent or guardian has a felony on his or her record, the minor child in effect cannot be a medical marijuana patient.
- The state requires documentation of sales, which the fed would use as evidence against the provider in an investigation.